Int’l laws shouldn’t apply to conflicts between States and terrorists
Dhanapala’s denial and The Island
September 5, 2010, 12:00 pm
by Shamindra Ferdinando
Apropos The Island lead story headlined ‘Ex-UN Under Secretary General tells LLRC: Intl. laws shouldn’t apply to conflicts between States and terrorist groups’ in its August 26 issue, Ambassador Jayantha Dhanapala has said he was ‘surprised and disappointed by the many distortions of his representation appearing in the Sri Lanka media and the commentaries based on these erroneous and selective reporting’.
Dhanapala, in a statement to a website called ‘groundviews’ on August 30, four days after The Island report on his presentation at the Lessons Learnt and Reconciliation Commission headed by former Attorney General C. R. de Silva, promised to release the full text of the LLRC transcript as soon as it was received. The following day, the website posted the full text of the LLRC transcript alleging that the official transcript had not mentioned what Shamindra Ferdinando, the Presidential Media Unit or the Defence Ministry in particular attributed to Ambassador Dhanapala in their respective news reports. The editor of the website claimed that he had read through the transcript.
This writer asked the LLRC on Friday (Sept. 3) whether Ambassador Dhanapala had complained to it about what he called erroneous and selective reporting but the commission replied in the negative. Secretary to the LLRC S. M. Samarakoon, too, said that he had released full text of the LLRC transcript to Ambassador Dhanapala following a request.
As Ambassador Dhanapala had not so far contradicted our news item, we yesterday morning asked him whether he would like to issue a clarification or correction. While declining to issue a statement, Ambassador Dhanapala said that The Island could carry the full text of the LLRC transcript. But when pointed out the difficulty in publishing the full text of 10,100 words, Ambassador agreed to the publication of the relevant sections, which had led to controversy.
Ambassador Dhanapala told The Island: "You have interpreted what I have said. Produce the relevant sections and let readers decide."
‘Groundviews’ website went to the extent of declaring that the media had failed due to erroneous and selective reporting. Interestingly, the website conveniently ignored the fact that a section of the media totally ignored Ambassador Dhanapala’s submission to the LLRC and The Island was the only newspaper to report it with emphasis on the need to review International Humanitarian Law (IHL).
In the wake of an attempt by a section of the international community to undermine Sri Lanka on the basis of alleged war crimes committed by Sri Lanka during the final phase of the war against the LTTE, nothing could have been as important as Ambassador Dhanapala’s statement.
The Island categorically states that its report at issue was based on Dhanapala’s submissions and there was no distortion, a fact that our readers will see if they read the the relevant sections of the LLRC transcript published on page 12 today.
The rules of war as they exist do not meet today’s requirements
Dhanapala calls for a new set of rules
Commenting on the International Humanitarian Law (IHL )Ambassador Dhanapala said: "May I go on to the subject of IHL. And although there are more competent authorities in your Commission than I am to talk on the subject, I believe that we have learnt a great deal of lessons from the experience of combating one of the most ruthless terrorist groups in the country. The primary purpose of International Humanitarian Law is the protection of civilians, and we have been exposed to a terrorist group who have used child soldiers unconscionably; who have used civilians as human shields and who have used suicide bombers to cause mindless destruction of property and the deaths of thousands of innocent civilians. How does a conventional Army of a nation state pursue a conflict with that kind of combatant? The rules of war as they exist today do not cater for that situation. (emphasis mine)We would be providing something innovative to the international community if we can discuss amongst our outstanding international lawyers here– and we have a galaxy of talent from Judge Weeramanthri to Dr. Rohan Perera to Dr. Lakshman Marasinghe and many others - who could all form a brains trust on behalf of the Government,engage with the International Committee of the Red Cross, the guardian of the Geneva Conventions, the 4 Treaties and the 3 Additional Protocols which today constitute International Humanitarian Law in order to try to give some guidance to armies of nation states as to how they should react to such a situation. We were very fortunate that in the end game of our conflict in May of 2009 we were able through the bravery of our own Army to save ourselves the possible holocaust of 300,000 civilians dying in the final stage. The earth bund behind which they were held as human shields was breached at great sacrifice by our Army and we were able therefore to minimize civilian losses. I do not think we have an accurate estimate as to what the civilian losses were in the cross fire but there were civilian losses. The tragedy would have been much greater if not for the bravery of our soldiers. But what if there was a tragedy greater than what happened. We would have been then denigrated in the eyes of the international community for no other reason but the fact that these civilians were being held as human shields. (emphasis mine) We have to I think engage first of all the ICRC and then the rest of the international community in order to perhaps convene a diplomatic conference to discuss the formulation of a new protocol with regard to combat with non state actors. This is a phenomenon that is taking place all over the world and I think the marshalling of international opinion on this issue will be one of the contributions that we can make in the codification of international humanitarian law.
Dhanapala push for action against countries sponsoring terrorism
This is what Ambassador Dhanapala had to say about the controversial responsibility to protect concept. "The other issue that I think important for us to make some kind of innovative move drawing from the experience of having been in conflict with the Liberation Tigers of Tamil Eelam is the issue of the responsibility to protect concept. This is a concept that you will recall was embraced in the UN General Assembly’s Summit of 2005, the 60th UN General Assembly when the Heads of States adopted the responsibility to protect concept which basically means that the primary responsibility for the protection of civilians lies with the Government of that state. But if a Government is either unwilling because it is a dictatorship or unable because it is a failed state to exercise its sovereign authority to protect its own civilians then that authority passes to the international community but subject to the fact that it has to be approved by the Security Council through a resolution."
Ambassador Dhanapala went on to say: "Now I think it is important for us to expand that concept to bring in the culpability of those members of the international community who have subscribed to the situation that has caused injury to the civilians of a nation. I talk about the way in which terrorist groups are given sanctuary; are harboured; are supplied with arms and training by some countries with regard to neighbours or with regard to other countries. We know that in our case this has happened, and I don’t want to name countries, but even countries who have allowed their financial procedures and systems to be abused in such a way that money can flow from their countries in order to buy the arms and ammunitions that cause the deaths, the maiming and the destruction of property in Sri
Lanka are to blame and there is therefore a responsibility to protect our civilians and the civilians of other nation states from that kind of behavior on the part of members of the international community, (emphasis mine) and I think this is something that will echo with many countries in the Non Aligned Movement where Sri Lanka has a very respected position and where I hope we will be able to raise this issue."
Ambassador Dhanapala’s unprecedented statement promoted former Foreign Secretary LLRC member H.M.G.S.Palihakkara to seek a clarification from his one-time colleague. Palihakkara: " My second question relates to your very interesting thoughts on the lessons learnt as they were about rules of engagement for the security forces dealing with huge international humanitarian law situations like human shields like what we faced at Nanthikadal etc. You have said that this is diplomatic avenue one could explore and you mentioned the diplomatic conference as a possible mechanism for that and others have suggested perhaps inter governmental working group on this issue could be a way out. Could you please give your observations on the modality. I for one believe this is a very good avenue to explore. Nevertheless the modalities of doing so I would like your further thoughts on it. Finally if you could please elaborate on the idea you mentioned about responsibility to protect. Expansion of that to cover the non state actors misusing liberal international and national legal regimes how it would help the issues on our mandate. I would like further light on your thoughts
Ambassador Dhanapala: "On the issue with regard to international humanitarian law, I think the ICRC with whom I have considerable experience – I served on their international advisory group for 4 years – and I know they have a great deal of expertise in the subject. After every major conflict in the world from the late 19th century we have had a gradual building up of international humanitarian law.
After World War II in 1949 there were a set of Geneva Conventions and so because the prevalence of non state actors and the problem of international terrorism is so widespread and because all civilized societies agree that no cause can justify the use of terrorism and because we have already something like 13 international conventions banning all forms of terrorism, we need to look into how counter terrorism can take place within the norms of international humanitarian law. It is not going to be an easy task because we are being confronted by ruthless enemies who disregard civilized norms and who are ready to use child soldiers; who are ready to use suicide bombers and are ready to use civilians as human shields. How does a well trained professional army react to individual situations. I think if we engaged in a dialogue – in a civilized diplomatic dialogue with other countries and with the ICRC – we will find a lot of people in similar situations; whether it is in Afghanistan; or whether it is in Iraq; or whether it is in some other place, Colombian Government fighting the FARC guerillas and so on. We will be able to make a contribution towards counter terrorism which is a very serious problem confronting the international community.
On the responsibility to protect my point was that the Canadian Commission that was responsible for the original report and which came up with what seemed at that time to be very cogent recommendations in the wake of what had happened in the 1990s in Rwanda and in Srebrenica in the Balkans was perhaps not completely the picture that people who had suffered from terrorism sought, and I think countries such as ours have a duty by the international community to present our experience and to try to extrapolate from it so that there could be a greater understanding of the responsibility of each and every member of the international community to prevent their territory being used for terrorism in other countries. This of course is already there in a number of treaties and in a number of resolutions adopted in the UN General Assembly. But for it to be added on consciously as part of the responsibility to protect concept I think it is very important because otherwise we are only having a situation where if a country is unable to protect a group of its citizens whether they be of a religious minority or an ethnic minority or a political dissident group, the situation automatically moves into the Security Council where matters of real politik begin to play and that could be very dangerous for small countries like Sri Lanka, and we need therefore to highlight the fact that causes that led to any situation in a country where a particular minority is affected could be as a result of incitement from abroad; financing from abroad; training of militias from abroad and I think that has got to be highlighted and I am sure that there are many countries – large countries including India – who have the same concern and who will join in the cause with us. Perhaps the Non Aligned Movement is an arena in which we can launch this initiative because there are a number of countries in the Non Aligned Movement who are not entirely happy with the concept of responsibility to protect even though it was adopted at the summit level in 2005 at the UN General Assembly Summit.
Legal expert Dr. Rohan Perera, member of the LRRP addressing Ambassador Dhanapala said: " As you said there were concerns on the part of states. But if those concerns flowed from the possibility of abuse for political ends as an instrument for intervention in the internal affairs of a state and for this reason perhaps the concept underwent change when the heads of state or the Governments came out with some document what was originally proposed by the Gareth Evans Commission. And I believe last year there was further
report by the Secretary General outlining the precise scope of the application of R2P limiting it to those 3 situations – crimes against humanity; war crimes; and I believe it was aggression. But just limiting it to those 3 situations and that its liberal application is not warranted such as to cover situations of assistance to victims of disasters. I believe all this flowed from the concern of statesthat while there are inherent merits in the concept with possibility of political abuse. So how do we approach that concern while we sort of also take on board the question of victims of terrorism? So there has to be some sort of balancing in that exercise.The second of course is more observation on humanitarian law. The sense that I have is that given again the sensitivity of states in according some sort of legitimacy – international legitimacy – by making non state actors treaty partners – we have this in the land mines convention. You referred to the Geneva Protocol. Now our own experience was that this was the argument that the LTTE used in one of the cases in Canada with regard to fund raising although they had not subscribed to the Geneva Protocol. The argument was that we have undertaken international obligations therefore we are not a terrorist organization but a liberation movement which has accepted international obligations. So there is a certain concern that once you have a treaty or a protocol imposing rights and obligations on states and non state actors on an equal footing you may be giving a certain legitimacy. Now perhaps for that reason the ICRC in its most recent publication on clarifying the concept of direct participation in hostilities has opted not to go down the path of a diplomatic conference culminating in a convention or a protocol but to provide interpretative guidelines tostates to clarify the concept of direct participation in hostilities in internal conflict situations where the, the traditional battle field has receded to the background and the civilian centre becomes part of the theatre of conflict. So taking into account the sensitivities even the ICRC has opted for this approach of interpretative guidelines or soft law than hard law given this dilemma with regard to the non state actor. So in that context how do you see the political feasibility of a binding legal instrument or would the soft law approach be a better option?
The following is Ambassador Dhanapala’s response: " On the R2P concept yes there has been a gradual shift of emphasis from the Canadian International Commission co-chaired by Gareth Evans which made its original proposals and which went through a mutation as it appeared in the final document and that was largely because of non aligned opinion. But what I think is important is that there has to be an acknowledgement that the sovereignty of countries has been interfered with when there is a training of terrorists; the provision of sanctuaries for terrorists; and the financing of terrorists plus the feeding of terrorists with the oxygen of finance when they need to buy their arms and ammunition and that recognition was absent. So in other words we were looking upon the violation of the fundamental principle of non interference in internal affairs and the state’s sovereignty issue because post facto a situation where civilians were found to be unprotected."
"The International Community was assuming the right through the Security Council to come in but my point is there has been already interference in the internal affairs of those countries and a violation of their sovereignty before that took place because they had contributed towards this situation and a recognition of this has to be an integral element of the responsibility to protect so that when the situation arises we have to recognize this.
The 3 categories that you mentioned are also of course part of the International Criminal Court as you know and the fact that it has now been restricted to that does not really change the situation very much because small countries could still be very vulnerable in this situation if there is no recognition that there have been contributory causes from the international community in the creation of this vulnerability of their populations or segments of their population to the situation where they have been affected."
"On the question of International Humanitarian Law if I may clarify, I was not suggesting that non state actors should be a party to the conventions and the treaties of Geneva which uphold International Humanitarian Law. I was only suggesting that there has to be a clarification as to how the terms of engagement can ensure that conventional armies are not charged with the violation of humanitarian law because they are facing a new situation where instead of a conventional army facing them in a battle they are facing a non state actor to whom the norms of war do not apply."
"And that is why I think there has to be some special exceptions, some either a delegation of international humanitarian law in particular situations or a new set of rules of engagement which will recognize that non state actors who do not observe the Geneva conventions are not entitled to be treated in the same way as a conventional army is on a battle field.
I don’t know the answers to this Mr. Chairman and distinguished Commissioners but it is something that has to be explored by international humanitarian lawyers in concert with the ICRC and if a diplomatic conference is not the chosen way to go by all means by other kinds of negotiations and international consultations. (Emphasis mine)
"…The proceedings here in the Lessons Learnt and Reconciliation Commission itself should be conveyed to the international community and therefore a more pro active and aggressive even campaign by our diplomats will be necessary going and talking to the governments and to the international organizations to which they are accredited on this issue."
Dr. Rohan Perera: "Thank you Mr. Dhanapala, may be just a follow up on the R2P. Yes certainly taking on board your
concerns the vulnerability of small states. Now couldn’t the same objective be achieved through a reinforcement of established principles such as the non use of territory for hostile acts against other states in particular neighbouring states; a duty to cooperate. So the principle of duty to cooperate in the suppression of serious international crime including trans frontier flow of funds which is very clearly set out in Security Council Resolution 1373. So isn’t there an existing plethora of principles and resolutions on which you can build up or reinforce this duty to cooperate rather than trying to expand this somewhat controversial concept of R2P which I said again at the beginning, the concern is the potential for political abuse of that concept? Ambassador Dhanapala: "I agree that there are a number of conventions, number of resolutions which certainly prescribe particular types of behavior for the international community. The problem is in their lack of implementation and while we have no one mechanism that can implement these laws we need to perhaps agitate for some mechanism to do that. But at the same time we must talk about those obligations within the context of R2P. It is not always done in that context. The R2P concept is discussed as a separate concept without necessarily linking it to this question of the export of terrorism and the abuse of countries with regard to the export of terrorism and trans border terrorism.
Prof. Karu Hangawatte, another member of the LLRP referring to Ambassador Dhanapala’s suggestion said that as a principle yes it was a very sound suggestion to protect, especially the smaller nations which were unable to use the traditional self defense principles to act against nations who harboured or protected or supported terrorists.
(Photos by JudeDenzil Pathiraja)
Last Updated Feb 26 2017 | 09:04 pm